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In The Supreme Court of Nigeria  

On Friday, 4th day of May 1990  

SC 46/1987

 

Before Their Lordships

 

 

Kayode Eso

......

Justice, Supreme Court

Augustine Nnamani

......

Justice, Supreme Court

Muhammadu Lawal Uwaisi

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Salihu Modibbo Alfa Belgore

......

Justice, Supreme Court

 

 

Between

 

Madam Jarawu Adeleke

.......

Appellant

 

And

 

Liadi Ajadi Aserifa

.......

Respondent

 

 

Judgment of the Court

Delivered by

Salihu Modibbo Alfa Belgore. J.S.C

 

 

This is a case that has its main plank mere facts, not law. The land in dispute, Exhibit A, is a part of a large portion of land first settled by one Arolu over one hundred years ago. When Arolu died he left five male children who decided to partition the land. The five children were Odeyele, Igbinbolu, Fadunmi, Akinnilehin, and Oke Amero. The land now in dispute is a part of the portion given to Igbinbolu. The plaintiffs father is a direct descendant of Igbinbolu. From Igbinbolu, right to Aserifa (plaintiffs father), the land in dispute was farmed with food and economic crops. It was during Aserifa's time that the father of the defendant/appellant, called Adeleke who came from Adogha, prayed Aserifa to be allowed to use the portion now in issue to grow food crops, a request that was granted. The condition of this permission was payment of "lshakole" (tribute). Adeleke continued to farm the land with food crops and plucked the few cocoa and kola nut trees still standing on the land of their fruits. Yearly Adeleke paid as "Ishakole", yams and a gallon of palm oil. Aserifa died and none the less Adeleke faithfully continued paying Ishakole to the plaintiff/respondent. Adeleke died in about 1957 and the plaintiff then took possession of the land; for this the appellant challenged him claiming outright title was in her father. In actual fact as found by the trial Court on concrete evidence before it, her father was a customarv tenant of the plaintiff's familv for about fifty years and paid the necessary tribute, "Ishakole." There is no doubt the appellant also descended from Arolu but that was just by the chance: a great granddaughter of Arolu, by the name Oyedele. through Arolu’s son Akinnilehin married Odunran of Adogba village resulting in the birth of Ige who was the father of Lawani Adeleke, the defendant’s father. The appellant (defendant) in her statement of defence avoided the female child Oyedele and placed Ige as the great grandson of Akinnilehin. In her evidence on oath. however, she could not avoid mentioning Oyedele as her paternal great grandmother. She now claims her right to the land through being a descendant of Akinnilehin: this claim is that of the outright, the land devolving on her from Arolu to Adeyanju to Oyedele, who as female daughter, got married to a man at Adogba who begat Ige and then Adeleke, her father.

 

Since Arolu, the original settler on the large expanse of land died leaving five male children who shared the land between themselves, the descendant of each child then held their respective portions communally and Akinnilehin and Odeyele descendants formed two distinct communities. The defendant belonged to Akinnilehin and the plaintiff (respondent) to Odeyele, who was the direct paternal grandfather of Igbinbolu. The burden on the plaintiff to prove his title was accepted as discharged by the learned trial Chief Judge when he held after summarising traditional practise:

 

some of the principles of customary law about land tenure in Yorubaland are:

 

(i)     that land usually belongs to the community, the village or the family but rarely to the individual;

(ii)    that on the death of an original owner of land his land is inherited, by his descendants and thus becomes family land; and

(iii)   the fact that a head of family gives land to a member of the family to farm upon does not make the land the property of that member; that land still remains family land.

 

On the death of Arolu therefore his land became family land in which every member of the family has an interest. I believe that Arolu had five children as contended by the plaintiff and his witnesses and that on Arolu's death his five children Odeyele, lgbinbolu, Fadunmi, Akinnilehin and Oke Amero succeeded to Arolu's land.

 

I disbelieve the defendant when she said one Adeyanju was a direct child of Arolu. I also disbelieve the defendant when she said that Arolu in his lifetime gave the land in dispute to the said Adeyanju absolutely.

 

He quoted Amodu Tijani v. Secretary Southern Provinces 3 N.L.R. 59, 60 and relied on it. He was convinced by the evidence before him that the plaintiff/respondent's case was proved and had no reason to prefer the story of the defendant/appellant.

 

On appeal to the Court of Appeal, Ibadan, the appeal was argued on purported grounds based on error in law. The point was not taken but it would seem that the Court looked at the case as a whole and decided the appeal on the issues formulated based on the alleged misdirection by the learned trial Chief Judge.

 

In the lead judgment by Omololu-Thomas, J.C.A., the facts as adumbrated in the trial Judge's judgment were well reviewed and some salient points omitted in that trial Court's judgment that the appellant capitalised upon in the appeal were well reviewed. That the Court unanimously came to the conclusion that the appellant's appeal had no merit and dismissed it on all the grounds. Thus the appeal to this court.

 

There are only two grounds of appeal in this Court, the additional grounds 3 and 4 being incompetent were struck out. The appellant, though served with hearing notice for 6th February, 1990, was absent; but having filed a brief of argument, the appeal was heard. The grounds of appeal supported by the brief filed led to the issues in the brief formulated by the appellant as follows:

 

 

Questions For Determination

 

3.01  We submit that the questions that call for determination in this Appeal are:

 

1.     Whether it could be said that there is partition of Arolu's land into five as claimed by the Respondent when the Respondent failed to lead evidence to show:-

 

(a)    That Arolu has any land at all at Adogba village where the Appellant's portion under the alleged partition was said to be.

 

(b)   That entire Arolu's land forms boundary with Adogba Village.

 

2.     Whether parties having joined issues as to the extent the Respondent's pleadings as to the boundaries of the said land and the position of the portion given to the Appellant under the alleged partition enough to discharge the Onus of proof on the Respondent with out leading evidence in support of the averment in the pleadings.

 

3.     When a document forms part of the Record of proceedings on appeal is it proper for the Appellate Court to refuse to consider such documents merely because it is not a Substantive Ground of Appeal?"

 

Certainly from the above issues, the appellant was raising new matters on facts decided in the trial court. There was by virtue of the plans filed in the trial Court and the evidence led by each party no dispute as to the land in issue. There was clear evidence as to what happened to vast land settled by Arolu, a big time hunter, that it was shared into portions by his five male children. This appeal is no more than mere attempt in this court to disturb concurrent findings of fact by the two lower courts. This court has on many occasions discouraged appellants coming here on adventure of attempting to set aside concurrent findings of fact by the lower courts. Unless the finding of fact as accepted by the trial court and upheld by the Court of Appeal is against the trend of evidence or is based on evidence that in law was inadmissible, this Court will not interfere with such finding. Chukwuogor v. Obuora (1987) 3 N.W.L.R. (Pt.61) 454, 457. The reason for this principle of law is not difficult to explain; the trial Court had the best opportunity of seeing the witnesses and hearing them give evidence; that court was best placed to assess such evidence based on the demeanour of each witness. The appellate court has not got these opportunities, it only see written records and counsel who are not legal witnesses. When the Court of Appeal upholds a finding of the trial Court, the attitude of this Court is clear: the concurrent findings of the courts below will never be disturbed so far the findings are not tainted with miscarriage of justice - Mogo Chikwendu v. Mbamali (1980) 3 S.C. 31 Ojomu v. Ajao (1983) 9 S.C. 22, 53; Lokoyi v. Olojo (1983) 8 S.C. 61, 68; Onobruchere & Anor. v. Esegine & Anor. (1986)1 N.W.L.R. (Pt.19) 799, 804.

 

The appellant in this case has failed to advanced any cogent reason either by way of grounds of appeal or in her brief of argument why the findings of fact by the two lower courts should be disturbed. This appeal by all indications is an adventure a game of chance, as I see no merit in it. I therefore dismiss the appeal on all the two grounds as totally lacking in merit with N500.00 costs to the respondent.

 

 

Judgment delivered by

Eso. J.S.C.

 

I have had the privilege of a preview of the lead judgment, which has just been read by my learned brother Belgore, J.S.C. I have also had the opportunity to read in advance the concurring judgment of my learned brother Karibi-Whyte, J.S.C. Having gone through both judgments, I have decided, as I agree with their conclusion and reasoning to adopt the reasoning in the aforesaid judgments.

 

 

Judgment delivered by

Nnamani. J.S.C.

 

I had the advantage of reading in draft the judgment A just delivered by my learned brother, Belgore, J.S.C., and I agree with his reasoning and conclusion that this appeal be dismissed. These are concur-rent findings of fact of the two lower courts and the appellant has not persuaded me that there is any justification for interfering with them. I endorse the order for costs in my learned brother's judgment.

 

 

Judgment delivered by

Uwais. J.S.C.

 

I have had the opportunity of reading in draft the judgment read by my learned brother, Belgore, J.S.C. I agreed with the judgment. I have nothing to add.

 

 

Judgment delivered by

Karibi-Whyte. J.S.C.

 

I have had the privilege of reading the judgment just delivered by my learned brother Belgore, J.S.C. I agree entirely with him that this appeal lacks merit, and ought to be dismissed. I also will dismiss, and hereby accordingly dismiss the appeal. I however wish to make some contribution in respect of the contention that the Court of Appeal to have admitted the fresh evidence sought to be adduced by the Appellant.

 

My learned brother Belgore, J.S.C., has stated the facts of this appeal. I adopt them and do not wish to repeat them. It is however, necessary to emphasize that the appellant is in the grounds of appeal and the issues for determination challenging the concurrent findings of fact made by the two courts below.

 

In his brief of argument which he adopted and relied upon in his oral argument before us, counsel to the Appellant formulated the issues for determination as follows –

 

1.     Whether it could be said that there is partition of Arolu's land into five as claimed by the Respondent, when the Respondent failed to lead evidence to show:-

 

(a)     That Arolu has any land at all at Adogba Village where the appellant's portion under the alleged partition was said to be.

(b)     That entire Arolu's land forms boundary with Adogba Village.

 

2.     Whether parties having, joined issues as to the extent of the entire Arolu's family land; is mere definition in the Respondent's pleadings as to the boundaries of the said land and the position of the portion given to the Appellant under the alleged partition enough to discharge the onus of proof on the Respondent with out leading evidence in support of the averments in the pleadings.

 

3.     When a document forms part of the Record of proceedings on appeal is it proper for the Appellate Court to refuse to consider such documents merely because it is not a substantive ground of appeal?

 

These three questions for determination encompass all the grounds of appeal filed and relied upon by the Appellant. The third question covers the A two original grounds of appeal which challenge the rejection by the Court below of the affidavits in support of the application for stay of execution by the Appellant. Learned counsel arguing the two original grounds has submitted to us both in his brief of argument and orally that the affidavits in question are part of the record and ought to have been admitted by the Court as fresh evidence and considered them in the determination of the appeal.

 

I think it will make for better clarity to set out also the formulation of the issues by the Respondent and a statement of the facts leading to the request for the admission of the affidavits as fresh evidence in the Court of Appeal.

 

On his part learned counsel to the Respondents has also formulated four different issues which in my opinion are more consistent with the issues raised in the grounds of appeal filed against the judgment. I prefer and will adopt the issue for determination as formulated by learned Counsel to the Respondent. The issues as stated in Respondent's brief of argument bring out the matter in contention forcibly. They are as follows –

 

4.1    Whether the mere fact of the inclusion in the Record of Appeal of affidavits and counter affidavits used in an interlocutory application after the trial and judgment in the case and which had not been admitted in evidence entitles the Court of Appeal to consider their contents during the hearing of the Appeal.

 

4.2   Whether it is permissible for the Appellant to introduce and raise in her brief of Argument an issue which has no relevance whatsoever to any of the Grounds of Appeal filed before the Court of Appeal.

 

4.3    Whether it is permissible for the Appellant to canvass and argue an issue of law under an omnibus ground of Appeal in the case.

 

4.4     Whether the Court of Appeal sufficiently considered the F primary issues arising for determination before it namely:-

 

(i)     The question of the grant of the land in dispute by Arolu in his lifetime to Adeyanju through whom the Appellant claimed to derive her title or whether the whole of Arolu's land devolved on his five children.

 

(ii)    The question as to whether the five children partitioned the entire land of Arolu and whether the land in dispute is Igbinbolu's share.

 

(iii)   The question as to whether Arolu's land formed boundary with Adogba family land at Adogba Village.

 

The facts relied upon by the Appellant in respect of the admission of the affidavits do not seem to me to be covered by any of the cases earlier decided. They are peculiar even though the governing principles relied upon by the Appellant is the same.

 

The relevant facts are that the judgment was given against the defendant in the court of first instance in an action by the Respondent as plaintiff claiming a declaration as to customary right of occupancy over all the piece or parcel of farm land, at Arolu Village occupied by the defendant, and an injunction restraining the defendant, her servants, agents or any person claiming through or under her from committing acts of trespass on the said parcel of land. This was on the 15th December, 1982.

 

In a motion dated 12th January, 1983, and fixed for hearing on the 7th February, 1983, Appellant moved the Court for a stay of execution of the judgment. In paragraphs 7, 8, 9 of the affidavit in support of the motion dated 14/1/83 Appellant deposed inter alia as follows –

 

7.     Since the judgment in this case was delivered the Plaintiff/Respondent has taken prospective buyers to the land in dispute.

 

8.     The plaintiff/respondent is seriously negotiating to sell the subject matter of this appeal and one of the prospective buyers he has taken to the land is one Tayo Ariye.

 

9.     I have been in undisturbed possession of the land in dispute since 1964 after the death of my father.

 

A second affidavit dated 2nd March, 1983, was sworn to by David Ojo Arije, and it was therein deposed to at paragraphs 2,3,4, 5,6, 7 as follows –

 

2.     That I know the land in dispute which is situate at Arolu Village, Iwo Road, Ibadan.

 

3.     That I bought the said land from Igbinbolu branch of family represented by Liadi Aserifa according to customary law in 1974 and a memorandum of sale dated 22nd March, 1974 was executed in my favour.

 

4.     That I took physical possession of the land in March, 1974 but while exercising acts of ownership thereon, Madam Jaratu Adeleke brought thugs to disturb me and I reported to the Plaintiff and to the Police.

 

5.     That my vendors - Igbinbolu family - then commenced Court action at the Grade B Customary Court and promised to refund my money only if they lost the case.

 

6.     That sometime in December, 1982, the plaintiff in the above named suit restored possession of the land to me.

 

7.     That the Defendant has nothing on the land.

 

In corroboration of the affidavit of David Ojo Arije, the Plaintiff/Respondent swore to an affidavit dated 2nd March, 1983, and deposed as follows –

 

5. That I do not know any person by name Tayo Arije and I have not negotiated to sell the land to him since the judgment of the Hon. Court.

 

7. That the applicant knew that Igbinbolu family, represented by me sold the land to David Ojo Arije as far back as 22nd March, 1974 and a copy of the Memorandum of Agreement dated March, /974, and prepared by J O. Moradeyo, Esqr. Solicitor is attached herewith and Marked Exhibit "A."

 

8.     That the said Mr. D. O. Arije took possession of the land in 1974 and the defendant went to disturb his possession and drove his workers off the land.

 

9.     That it was in consequence that I commenced action in Suit No. CV/38/74 at the Grade B Customary Court, Oke Are, Ibadan.

 

10.   That when D.O. Arije's possession was disturbed my family promised to refund his purchase price of N1 ,300 if eventually they lost the case pending in court. x x x x x x

 

14.   That Adeleke the father of the defendant died in 1970 and I took over possession in 1972 after his death.

 

15.   The defendant was at no time in possession of the land and has done nothing whatsoever on the land.

 

16.   That I am no longer (sic) (in) control of the land in dispute." x x x x x x x x

 

These two affidavits dated 2nd March, 1983 by Respondent and Arije were sworn to in opposition to the affidavit of the Appellant sworn to on the 14th January, 1983. Paragraph 4 of Mr. Arije's affidavit and paragraphs 7 and 8 of Plaintiff's clearly show that Appellant was quite aware of the transaction relating to the land between Mr. Arije and Plaintiff's family and was in a position to give the evidence at the trial of the action.

 

It is pertinent to mention that Appellant filed her notice of Appeal against the judgment dated 15th December, 1982 on the 5th January, 1983. The grounds of appeal relied upon concerned the issue of partition (grounds 1-3), and the general ground (ground 4). There was no reference to discovery of fresh evidence.

 

On 20/1/83, in settling the record of appeal, to be transmitted to the Court of Appeal, Appellant asked for all records of proceedings up to judgment to be included. It is therefore beyond any argument that the application for stay of execution of the judgment is not part of Appeal. Even if it was included, as it was, it did not constitute part of the material relied upon for the judgment appealed against.

 

The issue therefore raised by the contention of the Appellant is whether the Court of Appeal was in error in determining the appeal without taking into consideration the evidence in the affidavit in support of the motion for stay of execution of the judgment; whether the affidavits in question are part of the records of proceedings?

 

In rejecting the submission that it is the learned justice of the Court of Appeal said, at p.99.

 

Although the affidavit in question forms part of the records of proceedings of this appeal, learned Counsel cannot in my opinion properly raise the issue on the omnibus ground of appeal. If at all it ought to have been raised, on a substantive ground of appeal, that is: if such affidavit can be taken as fresh evidence (for which leave will be required), which would affect the outcome of the decision of the trial Judge in this appeal. Such evidence is irrelevant and cannot be considered as an issue in this appeal.

 

The view of the learned justice of the Court of Appeal was that the evidence sought to be relied upon was fresh evidence brought after the judgment. Accordingly leave was required before it could be admitted. Such leave having not been obtained, the evidence was irrelevant and could not be considered as an issue in the appeal. It is this view of the Court below that is being challenged before us.

 

The appeal by appellant against the judgment of the trial Judge was dismissed with N250 costs in the Court below on the 6th March, 1986.

 

In his notice of motion for leave to appeal Appellant sought to regularise the situation on further appeal, dated 22/5/86 against the judgment. Appellant exhibited.

 

1.     Certified true copy of the judgment dated 6/3/86

2.     Certified true copy of Respondent's affidavit dated 2/3183.

3.     Certified true Copy of ruling of the High Court dated 7/3/83 granting stay of execution.

4.     Copy of the proposed grounds of appeal.

 

In a Counter affidavit sworn to by the Respondent in opposition to the application on 30th May, 1986 it was deposed to in paragraphs 5,6,7 as follows –

 

5.     The Appellant by an application dated 16th October, 1985, sought from the Honourable Court an order "to receive and admit" Exhibits 2 and 3 mentioned in paragraphs 5 and 6 of the Appellant's affidavit as further evidence by affidavit and Counter-affidavit.

 

6.     That on the 31st of October, 1985, this Honourable Court refused the appellant's application 'to receive and admit" the said Exhibits 2 and 3 referred to in the said paragraphs 5 and 6 as further evidence.

 

7.     That there has been no appeal against this Honourable Court's ruling refusing "to receive and admit "Exhibits 2 and 3 mentioned in paragraphs Sand 6 of the Appellant's affidavit.


Before the appeal was argued in the Court of Appeal, Appellant brought an application dated 16th October, 1985 inter alia to receive and admit affidavit evidence that Respondents had already sold the land in dispute subject-matter of the action to Mr. Arije at the time the action was brought against the Appellant. Such evidence if established, it was considered, would go to defeat Respondent's claim for a declaration of title. In rejecting the application the Court below held that applicant did not satisfy the conditions laid down in Order 1 r.20 (3) Rules of the Court of Appeal, 1981. This is because the evidence sought to be admitted was available and known to the applicant at the trial of the action. This is the background to the application for the reception and rejection of new evidence in the Court below. In his argument learned Counsel to the Appellant submitted that Order 1 rule 20(3) of the Rules of the Court of Appeal, 1981 empowers the Court to admit further evidence. It was contended that the Court can exercise its discretion even if the application was not tied to any, or specific ground of appeal.

 

Counsel referred to the affidavits of the Appellant and of Mr. D .O. Arije and submitted that Appellant did not know of the evidence until the time for the Motion for stay of execution.

 

Learned Counsel for the Respondent in his reply pointed out that since the affidavits were not admitted in evidence, their contents could not be considered in the proceedings. Furthermore, which is the better reason, the affidavit of the Appellant did not disclose any special reason for the exercise of the powers under Order 1 rule 20(3)(5). Learned Counsel cited and relied on Obasi v. Onwuka (1987) 3 N.W.L.R. (Pt.61) 364. It was submitted that A mere inclusion of the "counter affidavits" in the record of appeal does not entitle the Court to make use of their contents. In this case they are illegal evidence, extraneous and irrelevant to the determination of the issues before the Court. Learned Counsel then submitted that since the issue of the proposed evidence was not relevant to and not covered by any of the grounds of appeal filed the Court was entitled to refuse to consider it - Wesern Steel Works Ltd. v. Iron & Steel Workers Union of Nigeria (1987)1 N.W.L.R. (Pt.49) 284; lyaji v. Eyiyebe (1987) 3 N.W.L.R. (Pt.61) 523.

 

Learned Counsel submitted that the issue being one of competence of the action by the Plaintiff/Respondent, is a question of law, which could not be argued under the general ground of appeal which pertains to the weight of evidence - Anyaoke v. Adi (1986) 3 N.W.L.R. (Pt.31) 731.

 

It is apposite now to refer to the rule of Court relied upon for the exercise of the discretion. The general powers of the Court of Appeal with respect to the reception of further evidence, is contained in Order 1 rule 20 sub-rule 3 which provides:-

 

(3)    The Court shall have power to receive further evidence on questions of fact, either by oral examination in Court, by affidavit, or by deposition taken before an examiner or commissioner as the Court may direct, but in the case of an appeal from judgment after trial or hearing of any cause or matter, on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds. x x x x x x

 

(5)    The powers of the Court under the foregoing provisions of this rule may be exercised notwithstanding that no notice of appeal or respondent's notice has been given in respect of any particular party to the proceedings in the Court, or that any ground for allowing the appeal or for affirming or varying the decision of that court is not specified in such a notice; and the Court may make any order, on such terms as the court thinks just, to ensure the determination on the merits of the real question in controversy between the parties.

 

A careful analysis of sub-rule (3) discloses that there is a general power for the exercise of discretion (i) where the matter on appeal had not been heard on its merits, in the trial Court and (ii) where the appeal is from a judgment after trial or hearing on the merits. In the first case the Court shall have power to receive further evidence on questions of fact either by oral examination in court, by affidavit or by deposition taken before an examiner or Commissioner as may be directed by the Court. In the second case, which is after due trial or hearing, on the merits no further evidence shall be admitted except on special grounds. The special grounds seem to be in this case evidence as to matters, which have occurred after the date of trial or hearing. The paramount consideration for the exercise of this power is to ensure a determination on the merits of the real question is controversy between the parties.

 

The general rule guiding the exercise of appellate jurisdiction is to enable the superior Court to correct the errors of fact or law made by the inferior court. Hence the errors in or correctness of the decision of the inferior court can only properly be determined by consideration of the same matters before that court. This is because the trial Court arrives at its decision after due consideration of the evidence on both sides. The purpose of an appeal there-fore is to determine whether on that same evidence, and no other, and the law applicable the trial Court came to the right decision. Otherwise it will be difficult to assess the correctness of the decision of the trial Court where fresh evidence not tendered before it, is taken into consideration. The trial Judge cannot be judged on this new evidence which he did not have the opportunity to consider. The appellate court is entitled to the benefit of his views on that evidence. Hence, the rationale for the extreme caution in the appellate courts before admitting "fresh evidence" or "additional evidence." The instant appeal having been decided on the merits, appellant can only succeed in showing special circumstances, why the new evidence sought to be admitted ought to be received. The evidence is not a matter, which occurred after the trial. The Court was not satisfied that it did show such special circumstances.

 

The purport of the evidence in the instant case, is to show that Plaituff has divested himself of his interest in the land in dispute and is therefore not competent to bring the action.

 

It is important therefore to examine the pleadings of the parties to see whether this is a matter in respect of which issue was joined. Competency of the Plaintiff to bring the action was not in issue, as it was not pleaded. It is an issue which must be pleaded to avoid surprise. Thus the court cannot consider the reception of the evidence without an amendment of the pleadings –

 

See Onibudo v. Akibu (1982)7 S.C. 60. The principles governing the reception of fresh evidence was laid down in Asaboro v. A ruwaji (1974)4S .C. 119 and has recently been approved in Obasi & Anor. v. Onwuka & Ors. (1987) 3 N.W.L.R. (Pt.61) 364 where Oputa, J.S.C., following the principles laid down by this Court in Asaboro V. Aruwaji (supra) stated the principles as follows -

 

In civil cases the Court will permit fresh evidence in furtherance of justice under the following circumstances -

 

(i)     Where the evidence sought to be adduced is such as could not have been obtained with reasonable care and diligence for use at the trial.

 

(ii)    Where the fresh evidence is such that if admitted would have an important, but not necessarily crucial, effect on the whole case.

    

(iii)   Where the evidence sought to be tendered on appeal is such as is apparently credible in the sense that it is capable of being believed. It need not necessarily be incontrovertible.

 

Hence where the evidence is available and could with reasonable care and diligence be made available to the applicant at the time of the trial, as in the instant case, the Court of Appeal will refuse to exercise its discretion to receive such evidence - See Att. Gen. of the Federation v. Alkali (1972)12 S.C. A 20, Uche v. State (1986) 3 N.W.L.R. (Pt.30) 528; Inland Revenue v. Rezcallah (1962) All N.L.R. 1. However, if applicant referred to the document in his pleadings or evidence but did not tender it, the appellate court can admit it - See Latinwo v. Ajao (1973) 2 S.C.99.

 

I have already pointed out that the claim of Appellant for the reason why he wanted the evidence to be adduced is to show that Respondent had no title to the property in dispute at the time he instituted the action. This is based on the assumption that Respondent was seeking a declaration of title. As learned Counsel to the Respondents pointed out, there is no claim therefore the Court, for a declaration of title. The claim is for a declaration that members of the 1gbinbolu family are entitled to a Right of occupancy over the land in dispute. Thus the evidence of sale to Mr. Arije, even if admitted, would not have an important effect on the whole case. The averments in paragraphs 7 and 8 of the Appellant's affidavit of 14/1/83 are inconsistent with the contention that Respondent has been divested of his interest in the land in dispute. At any rate there is no suggestion from the averments in the affidavits that at the time action was instituted against appellant the sale to Mr. Arije was complete; and therefore Respondent had been divested of his title or interest in the property.

 

Finally, I agree entirely with the submission of learned Counsel to the Respondents that an issue of competence to bring an action which is a question of law cannot be argued under the general ground of appeal which relates only is to the weight to be attached to the evidence in the case - See Oghoda v. Adelugba (1971)1 All N.L.R. 68. Mogaji v. Odofin & Ors. (1978)4 F S.C. 91 at p.93. Anyaoke v. Adi (1986) 3 N.W.I..R. (Pt.31) 743.

 

The Court of Appeal rightly refused to consider the evidence in the affidavit which it correctly rejected. It is a well settled rule of practice that a Court will not deal with any issue which is not properly before it - See Ebba v. Ogodo [1984] 1 SCNLR 372, 385.

 

Learned Counsel for the Appellants citing and relying on Sub-rule (5) of Order 1 rule 20 submitted that the Appellate Court can exercise its powers even where the issue was not covered by any of the grounds of Appeal. But it seems to me that this discretion is subject to and predicated on the evidence sought to he admitted satisfying the conditions laid down in order 1 r. 20(3) Appellant does not fall within the second class of applicants contemplated in Order 1 rule 20(3) who are entitled to the exercise of the discretion if he became aware of the evidence sought to be adduced after the hearing on the merits of the case, and could not have. even with reasonable diligence, discovered the evidence sought to be adduced at the trial - See Asaboro v. Aruwaji (supra). The Court will not exercise the discretion where it will be unfair to the trial Judge and would create a dangerous precedent – See A-G. v. Alkali (1972)12 S.C.29. In the instant case the evidence sought to be adduced as disclosed on the affidavits was available at the trial and so known to the Appellant. The overriding consideration in my opinion therefore is that where the evidence sought to be received on appeal is irrelevant to the issues to be decided before the court, it should be rejected. It is in the interest of justice, the efficient and effective administration of justice and to obviate the prolongation of litigation to ensure that evidence, which ought to be adduced at the trial of an action, should not be postponed to after judgment. It will be dangerous to allow on appeal, evidence which, ought normally to have been adduced at the trial.

 

I now turn to the other issues for determination, which is the subject-matter of the grounds of appeal dealing with the partitioning of Arolu's land; and the root of title of the respondent with reference to the land in dispute.

 

Learned Counsel to the Appellant has contended in his brief of argument that Respondent has not proved that Arolu's land was partitioned among his five children. It was submitted that evidence of the Respondent and his witnesses with respect to the partitioning of Arolu's land is not satisfactory. Counsel relied for this submission on the evidence that Appellants portion of Arolu's land is at Adogba village, which is a distinct Community with its own separate identified parcel of land.

 

Learned counsel observed that the averment of the boundaries in the statement of claim was not supported by any evidence.

 

This part of the Appellant's case suffers from what this Court has repeatedly warned Appellants, namely, not to appeal against concurrent findings of fact unless there are exceptional grounds which could be shown why the findings ought to be disturbed.

 

Concurrent with the findings of fact made by the trial court, the court below also found that -

 

(a)     Arolu, the founder settler on who both parties depended for their root of title, had five children who on his death succeeded to his land.

 

(b)     Arolu's land extends to Adogba family land.

 

(c)     The other branches of Arolu family except the Appellant conceded the claim of the Respondent

 

(d)    That the Appellant failed to lead credible evidence of the claim that Arolu in his lifetime made a grant of the land in dispute to Adeyanju.

 

(e)    There was concurrent finding that Appellant's father, Adeleke was an Ishakole paying tenant on the land in dispute

 

(f)    The story of the Respondent is more likely to be true and that the land in dispute is more likely to be that of the Respondent after partition.

 

There has been no appeal against the findings (a) (c) (d).

 

The criticism that there was no satisfactory evidence in support of the partition seems to me misconceived. There was ample evidence from the witnesses on both sides indicating the holdings of each of the five branches of the Arolu family. It is well settled that under Yoruba customary law partition can be effected orally - See Idowu';. Hausa & Ors 13 N.L.R 96, Taiwo v. Taiwo (1958) 3 F.S.C. 80. There was evidence of the partition which was believed and not controverted by the Appellant.

 

Appellant has complained against the findings in respect of the boundaries. Examination of the pleadings discloses that issues were not properly joined. Respondents pleaded the extent of the land in paragraphs 3, 4, 5, 7, 8, 9, 15 and 19. Appellant merely denied the averments without answering to the material points raised therein. This is not an answer to the averments in the statement of claim - See Nwadike v. lbekwe (1987) 4 N.W.L.R. (Pt.67) 718. Accordingly Appellant's imperfect denial is deemed an admission of the facts contained therein - Lewis & Peat v. Akhimien (1976)7 S.C. 159; Ajao v. Alao (1986) 5 N.W.L.R. (Pt.45) 802.

 

Paragraphs 8, 14 of the statement of claim pleaded the boundaries and extent of Arolu's family land. There was a mere denial of these averments and no alternative plan joining issues. Thus no issue was joined with respect to the extent or boundaries of the land in dispute or the Arolu family land as a whole. The identity of Arolu's land at Adogba Village that was well known to the Appellant was not in dispute.

 

These are findings, which have been made by the two Courts below. Appellant has not given any reasons why this Court should interfere with them I will therefore affirm the judgment of the Court below and dismiss this appeal.

 

The appeal totally lacks merit. Appellant shall pay N500 as costs to the Respondents.

 

Appeal dismissed.

 

Counsel

 

Agbo Olaleye

 

For the Appellant

A. Ishola-Gbenga

For the Respondent